Williamson v. Hogan
| Decision Date | 31 January 1868 |
| Citation | 1868 WL 4917,46 Ill. 503 |
| Parties | GEORGE D. WILLIAMSON.v.JOHN HOGAN. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from the Court of Common Pleas of the city of Cairo; the Hon. JOHN H. MULKEY, Judge, presiding.
The opinion states the case.
Messrs. ALLEN & WEBB, and Mr. D. T. LINEGAR, for the appellant.
Messrs. O'MELVENY & HOUCK, for the appellee. Mr. CHIEF JUSTICE BREESE delivered the opinion of the Court:
This was an action of replevin for the steamboat Cumberland, brought to the Court of Common Pleas of the city of Cairo, by George D. Williamson against John Hogan.
To the declaration, the defendant pleaded, in substance, that on the 20th day of September, 1866, an attachment warrant came to his hands as city marshal, issued by the Clerk of the Court of Common Pleas of the city of Cairo, bearing the above date, in a suit wherein Samuel Wilson was the plaintiff, and the steamer “Cumberland” was the defendant, and then and there, at the city of Cairo, navigating the Ohio river in this State, and wholly owned by a corporation of this State, and of four hundred tons burden, for the sum of four hundred and eighty-two dollars and sixty-nine cents, for supplies furnished the boat at her home port in Cairo, by Wilson, whereby he, as city marshal, was commanded to seize the said boat, if to be found in the city, or so much of her tackle, apparel and furniture, as should be of value sufficient to pay this debt and costs, and the same so seized to hold, or so to proceed, that the same be liable to further proceedings thereupon, at the October term of the Court of Common Pleas, to be held on the first Monday of October, 1866, to answer to said Wilson in a plea of assumpsit, etc. That by virtue of this writ, he did, as city marshal, on the 20th day of September, 1866, at the city of Cairo, take the goods and chattels in the declaration mentioned, and seized the same by virtue of that writ, as the property of the River Transportation Company, a corporation under the laws of this State. He further alleged in his plea, that on the same day, in pursuance of the statute, he released the same from his custody to the owners thereof, on the execution and delivery to him of a bond, conditioned for its return, to answer whatever judgment might be rendered in the suit against the boat, or have double the sum for which the warrant was issued. The plea then alleges that the cause was continued at the October term, but that at the January term, 1867, such proceedings were had that Wilson recovered a judgment against the boat for four hundred and eighty-seven dollars sixty-four cents and costs, and that in default of payment thereof, the property attached be sold under a special execution. The plea then alleges, that on the 25th of January, 1867, a special execution was duly issued, and to him delivered on that day, commanding him to sell the property so seized without delay, and that by virtue of this writ, he did, at the city of Cairo, on the 20th day of March, 1867, levy upon and take the property in the declaration described, as the property attached and seized on the attachment warrant issued on September 20th, 1866, and as the property of the River Transportation Company, averring that the property was the property of that company at the date of the seizure under the attachment warrant, aud there and then subject to such seizure and attachment, the vessel being at her home port, etc.
To this plea, the plaintiff obtained leave to reply double, and in his first replication he sets out proceedings in the Circuit Court of Alexander county, at the October term, commenced by warrant, at the suit of plaintiff, and others, under which judgments were rendered against this steamboat, her furniture and apparel, and that afterwards, special writs of execution, issued upon these judgments, against the boat, her apparel and furniture, directed to the sheriff of the county to execute, and that the sheriff, on the fifteenth day of January, 1867, by virtue of those writs, after giving due notice, did, rccording to law, for the purpose of satisfying the executions, expose the boat, her apparel and furniture to public sale, and that at such sale, the plaintiff bid for her, her apparel and furniture, sixteen hundred dollars, which, being the highest bid, the boat was struck off and delivered to him by the sheriff, and a bill of sale was made and delivered to him by the sheriff, on the eighteenth of that month, and that he remained in peaceable possession of the boat, and her furniture, until the taking and detention by defendant.
The second replication sets out proceedings by warrant, at the November term, 1866, of the same Circuit Court, under which judgment was rendered against the River Transportation Company, in favor of Fowler, Lee & Co., for the sum of ten thousand dollars; that a special writ of execution was issued on this judgment, directed to the sheriff to execute, who levied on this boat, her apparel and furniture, she being then and there the property of the River Transportation Company, and the sheriff did, then and there, expose her to public sale, after advertising according to law, and at the sale, on the fifth of January, 1867, the plaintiff bid for the boat, her apparel and furniture, the sum of $4,200, at which sum she was struck off to the plaintiff, and delivered to him by the sheriff, who made a regular bill of sale of her to him, and that he remained in the actual peaceable possession of the boat, her apparel and furniture, until the taking and detention by the defendant.
To each of these replications the defendant demurred generally. Judgment upon the demurrer was given for the defendant, and a writ of retorno habendo awarded.
To reverse this judgment, the plaintiff brings the record here by appeal, and assigns as error this decision upon the demurrer.
Appellant makes the point, that the demurrer should have been sustained to the plea, if the replications were defective, as the plea is also defective. The principle is well established, that judgment should be given against the party committing the first fault in pleading. Is the plea defective? By turning to the statute, under which the proceedings set up in the plea, were had, act of Feb. 16, 1857, it appears, by section 1, that steamboats, and other water craft, navigating the rivers within, or bordering upon this State, are made liable for debts contracted on account thereof, by the master, owner, steward, consignee, or agent, for materials, supplies, or labor, in building, repairing, furnishing or equipping the same, or due for wharfage. Scates' Comp. 789.
It is no where averred in this plea of what character these supplies were, or that they were furnished by contract with the owner or master, steward, consignee or agent. The statute makes provision for materials or supplies, or labor in building, repairing, furnishing or equipping the vessel. We cannot intend the supplies were of this description, or that they were furnished on contract, and with the persons named in the act. If they were not, then the boat was not liable. To avail of the statute, the pleader must bring himself within its terms and spirit. This, the plea does not do, and is therefore defective, and the demurrer should have been sustained to it. We might here leave the cause by a reversal of the judgment for the insufficiency of the plea, but as the cause will have to be remanded, it is necessary to decide other questions which have been made and argued, and which are of an important character, preliminary to which, however, the replications must be noticed.
Were they so defective as to be obnoxious to a general demurrer? The first replication does not aver at what time the October term of the circuit court was held, nor does that or the second replication specify the time when the writs of execution were issued, and when, or in what county, they were levied. Enough, however, is averred, from which fair inference may be drawn, that the term was in October, 1866, and that the executions were issued and levied before the fifteenth and fifth of January, 1867, respectively, at which last named day, the sale, under the Fowler, Lee & Co. judgment is alleged to have been made, and the former, the day on which the sale on the plaintiff's judgment, with the others named, was made.
The replications are substantially good, and do not depart from the declaration. They are in the nature of a confession and avoidance. They substantially say, true it is, that you did levy on and seize this boat, by the warrant in your hands, but you admit, she was released to the owner on a bond being executed, by the terms of which, the boat was to be forthcoming to answer any judgment that might be obtained, or double the sum for which the warrant issued; that while the boat was so in the possession of its owner, the sheriff levied the execution in my favor on the boat, it was exposed to public sale, and struck off to me, as the highest bidder, and a bill of sale executed to me, by the sheriff, and I was in the peaceable possession of the boat when you took her out of my possession.
These replications present the question as to the effect of this release of the boat to the owner, on a bond being executed. By the seizure under the warrant, a lien was obtained; that is certain, and if it was not released, the boat became subject to sale on the execution which issued on the judgment obtained by Wilson, admitting his case was within the act of 1867.
The fifth section of this act provides in terms, that the owner, master, etc., or other agent, may discharge the property seized, upon entering into bond to the officer, with two or more sureties, in double the amount of the demand sworn to be due by the plaintiff, conditioned that the property, or double the amount sworn to be due, shall be forthcoming to answer the judgment under the seizure.
Here is a clear discharge of the lien effected by the bond, but...
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